GIRDHARILAL SUGAR AND ALLIED INDUSTRIES LTD. Vs. CCE

JUDGEMENT

(1.) THE appellant filed this appeal against the order -in -appeal dated 23.9.04.

(2.) THE relevant facts of the case, in brief, are that the appellant had wrongly taken credit of duty amounting to Rs. 48,000/ - in respect of capital goods under Rule 57Q of Central Excise Rules 1944. These capital goods are part of molasses tank. It has been alleged that these parts of molasses tank appear to be not within the ambit of Rule 57Q of Rules as they are not used for producing or processing of any goods. By order -in -original dated 26.5.95 the Assistant Commissioner of Central Excise confirmed the demand of duty of Rs. 48,000/ -. The appellant filed an appeal along with stay application before the Commissioner (Appeals). The Commissioner (Appeals) passed interim stay order in the year 1996 wherein pre -deposit of duty was waived. Thereafter, by Interim Stay vacation Order dated 4.3.98, Commissioner (Appeals) vacated the stay order on the ground that they failed to appear in personal hearing on one or the other pretext and directed the appellant to deposit the entire amount within two weeks from the date of that order. By Order -in -Appeal No. 198 -CE/BPL/98 dated 19.3.98, the Commissioner (Appeals) rejected the appeal for non -compliance of the conditions of Section 35F of Central Excise Act 1944. It has been observed by the Commissioner (Appeals) that the appellant failed to deposit the duty amount as directed by Interim Stay Vacation Order dated 4.3.98. The appellant filed a representation by its letter dated 27.9.98 before the Commissioner (Appeals) for recalling the order -in -appeal dated 19.3.98. It was contended by the appellant that they have already deposited a sum of Rs. 48,000/ - under protest in RG -23A on 16.12.95. Thus, it is clear that they have complied the order well in advance and, therefore, appeal cannot be rejected for non -compliance of the order. Thereafter, the appellant submitted a letter dated 23.8.04 to the Commissioner (Appeals) to decide their representation by letter dated 27.9.98. The Commissioner (Appeals) by impugned Order -in -Appeal dated 23.9.04 rejected the appeal of the appellant without going into the merits of the case. The Commissioner (Appeals) observed that he has no power to restore the appeal. The appellant filed the present appeal against Order -in -Appeal dated 21.9.04.

(3.) THE ld. DR on behalf of the respondent submits that no appeal is maintainable against the impugned Order -in -Appeal dated 21.9.04 as the said order was not passed against any adjudication order passed under Section 35A of the Central Excise Act, 1944.